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Friday, October 26, 2012

Maurice Chammah of the Texas Tribune has published an article not so much about the the guilt or innocence of Preston Hughes, but about the life-and-death tug-of-war between Preston's attorney and those of us who believe someone should be able to argue they are innocent before the State puts a needle in their arm.

Wow! That's an overly long introductory sentence, but I think I'll leave it as is.

Mr. Chammah's article was published simultaneously in The New York Times. Given his word count limit, and given that he stepped into the midst of an exceptionally high stakes disagreement, I credit him for providing a balanced presentation of the dispute. Before writing the article, he talked to all parties involved and then some. He presented quotes and arguments from both sides, but had little space in which to develop them.

(Pssst. Don't tell anyone, but Mr. Chammah completely misrepresented what I said, though he got the portion between the quote marks correct. My position has always been that this is a seemingly overwhelming case of guilt. Mr. Chammah wrote: "'This is a seemingly overwhelming case' of innocence, Allen said." I'm chuckling as I type. The whole point is that it is definitely not a seemingly overwhelming case of innocence, or we wouldn't be talking right now.)

Now on to Mr. McCann, Preston's purported appellate counsel. Mr. McCann had some kind, if condescending words for our effort to save Preston Hughes.

This week, he said Mr. Allen “sounds like a very sincere man who is attempting to right a wrong.”

“Like in fantasy football,” he said, “I think lots of people are happy to offer thought without skin in the game.”

What's Mr. McCann's skin in "this game"? His reputation? The State payment he receives for each writ he files not arguing Preston's innocence? I'm not bothered by the flippant metaphor because of any skin I have in this game. I'm bothered by the fact that the only person whose skin is on the line is that of Preston Hughes III, now scheduled for execution 20 days hence for a crime he did not commit.

I will admit also that I'm disappointed by Jeff Blackburn's comment. I hold Jeff Blackburn in high regard for his successful efforts to right the terrible wrongs of Tulia and for his work for the Innocence Project of Texas. Here's his quote:

“Once the lawyers do the spadework, a lot of people want to come in,” said Jeff Blackburn, a lawyer who runs the Innocence Project of Texas, “and they don’t understand that we’re limited with the art of the possible here.” He called Mr. McCann a “great lawyer.”

Hahaha. Good one. I challenge anyone to point to Mr. McCann's "spadework". Mr. McCann has done no more shovel ready work than the $800,000,000,000 stimulus money that did a swirly down our national drain. On the other hand, Mr. McCann acknowledged some of the stuff we dug up.

Mr. McCann agreed that Ms. Charles would have “been unconscious in a matter of seconds based on the blood loss,” and so she could not have said Mr. Hughes’s name to the police. Despite being troubled by this evidence, he is not filing a claim of innocence.

Okay, that's another good one. Mr. McCann didn't spade that insight from seemingly infertile earth. Someone else did it for him. Furthermore, I'm aware that Mr. McCann also now believes that the HPD planted the glasses in Preston's apartment, and he certainly didn't dig that one up either. I offer the following from a recent letter from Preston Hughes.

I received a visit from McCann Friday afternoon. He told me he had talked to you. Was he lying or not?

I guess I should interrupt here. I have attempted to contact Mr. McCann and/or his associate Carmen Roe by phone and by email. I have attempted to make them aware of all the evidence we have uncovered regarding Preston Hughes' actual innocence. I have not heard back from either of them. Now back to the letter. I'll not interrupt again.

He told me he had spoke to you concerning the fact that the police planted the glasses in my apartment and he said "that was fucked up that the police planted those glasses in your apartment." He also told me that he planned to file something about the prosecutor's prosecutorial misconduct and so on. I believe he was just saying things he thinks I would like to hear. As I said I don't trust him and I'll never believe anything he has to say to me. For me to trust him would be like placing a cat in a bird cage and believing the cat wouldn't harm the bird. That just isn't going to happen. So I find it hard to believe that someone who had admitted to me that they don't like me would all of a sudden be willing to help me after all the years of fucking over me. [sic]

So Mr. McCann now believes that the Houston PD fabricated a dying declaration, and perjured themselves, so that they could frame someone they believed was guilty. And Mr. McCann now believes that the HPD planted evidence in Preston's apartment, and perjured themselves, so they could frame someone they believed was guilty. And surely Mr. McCann must be aware that the Houston PD crime lab was so corrupt and crappy that it was shut down not long after it assisted the HPD in their framing of Preston Hughes. Surely a "great lawyer" would be aware of that.

Still, Mr. McCann refuses to defend Preston Hughes based on his innocence. He explains that attorney-client privilege prevents him from revealing why he won't do so, then immediately violates that privilege, in the most obscene manner possible, by telling everyone he believes his client is guilty.

Mr. McCann says he cannot comment on why he will not pursue these claims, which were not introduced in Mr. Hughes’s original trial. ... “I find myself in an odd position,” he said, “because I’m ethically bound not to advance a claim I think is false.”

Holy ethics violation, Batman!

Everyone will of course now conclude that Mr. McCann has inside knowledge of devastatingly inculpatory information that he simply cannot share with you. Nor will he share it with me, though Preston would waive the privilege which belongs to Preston, not to McCann. The most stunning and most telling point is that Mr. McCann will not share even with his own client his reason for not filing a claim of actual innocence.

The only odd position McCann finds himself in is being paid by the State for over a decade to defend a person he cannot and will not effectively defend. And, most shockingly, he resists the effort by his own client to replace him with someone who will.

Mr. McCann makes no motion that will save Preston's life. He files only a motion that at best could result in his client being injected with three lethal chemicals instead of one. He vows not to defend his client's innocence until his client is executed.

Mr. McCann plans to follow the case to the end. In September, he sued the Texas prison system, saying that by using a single drug for the execution, as a result of a recent policy change, officials would be experimenting on his client. The Court of Criminal Appeals, Texas’ highest criminal court, has ordered the civil court overseeing the case not to stay Mr. Hughes’s execution.

The writ of habeas corpus, "The Great Writ", came into existence because States would lock their citizenry away in undisclosed locations for indefinite time. The term comes from medieval Latin meaning "have the body" or "produce the body." A petition for writ of habeas corpus is therefore unique: anyone can file it. It would be of no use if only the person constrained from filing it was allowed to file it.

That bizarre situation, however, is exactly what Mr. Patrick McCann has created. He will not file based on Preston's actual innocence, and Preston cannot file pro se (by himself) as long as Mr. McCann purportedly represents him. The court will not allow an inmate hybrid representation. It will not allow an inmate to defend himself if he accepts the attorney the court appointed for him.

We attempted to resolve that problem once. We will try again.

In any case, a petition for writ of habeas corpus will be filed for Preston Hughes, and it will be based on his actual innocence. The most recent draft of one possible petition is here.

8 comments:

Lynne
said...

I'm so sorry to hear that his attorney has taken this position, just given up when there is so much questionable evidence in this case. Preston deserves better. I admire you for working so hard to try to help him. I wish there was more I could do to help.

Anon,And I'm now adding an entirely new Part about the prosecutor knowingly allowing the presentation of false evidence.

A petition can be longer than 50 pages, if permission is granted by the court. Preston will be submitting a request for extra pages as he submits his petition. It is extremely unlikely the court would deny that permission in an impending death penalty case. If they do, then they will sent the petition back without prejudice, meaning that Preston can amend it and resubmit it.

As usual, everything here is now a life and death decision. The decision in this case is that so much evidence of innocence and constitutional errors would have to be excluded that it is wiser to request and expect additional pages.

Good to know that this case has received some publicity at long last, re. the articles and that the petition is going well. If I can be of any further assistance even at this late stage, please do not hesitate to contact me - Maria.

I have tried to contact the Board of Pardons and Paroles as you suggested to no avail, at least by email. The email address they list is always rejected.

This does not, however, change the fact that you refuse to act on behalf of your client and that you would see him be put to death as a result of your lack of action when there remain serious questions about prosecutorial misconduct in this case! That you can sleep at night is unconscionable to me!

Heather Hales

I don't think that it will matter an ounce to Mr. McCann but I am so incensed it made me feel a tad better.

First let me say that I appreciate your passion in this matter. I read in another blog that Preston is 46 and will not live to see 47. What the blog didn't say is that Shandra Charles was 15 and did not live to see 16. It also did not say that Marcel taylor was 3 and did not live to see 4.

Preston had his day in court. He had many appeals filed on his case. He has had national and world wind attention focused on him and the case in general. With the Courts of Appeals and the US Supreme Court looking at the case and as left leaning ( I don't mean to sound critical) as they are in cases of this nature, I think the courts have spoken and justice (whether you agree with it or not) needs to be carried out. This is just my opinion and I expect to have my head bitten off